By Gianna Huesch
One of the toughest things to navigate during separation and divorce is when a parent wants to move to a new location with the kids. Parents without primary custody are often opposed to the move and the cases frequently end up being disputed in the family courts.
For those parents who will need to seek permission to relocate through the court system, it is helpful to know how the courts decide such cases and what factors might influence decisions.
Relocation cases are complex and it’s important to get legal advice from a family lawyer on your options should the other parent refuse to allow a move. But the basic principle followed by all family court judges is to decide what is in the best interests of the child. It follows that building a case for relocation requires satisfying the court that the move will be in the child’s best interests.
The court will consider a wide range of factors common to all custody disputes. Standard factors for determining the best interests of a child will be examined, such as the nature of family relationships, past and present behaviours of the parents, any issues of abuse, among a number of other criteria.
There are also criteria specific to relocation that the court will consider, including practical difficulties and expenses, and the potential effect of the move on the child. A child’s views on the relocation may also be taken into account, depending on such things as the child’s level of maturity and whether they have been induced to want to move (or stay).
Courts have also demonstrated that weight will be placed on the psychological and social needs of the parent wishing to relocate. In some cases, consideration has been given as to whether being prevented from relocating would have a harmful effect on a parent’s mental health and therefore potentially affect their parental capacity.
One of the more common reasons for rejecting a parent’s application to relocate has been that there has been a demonstrable lack of effective planning by the parent hoping to relocate. Therefore, if you are wishing to support your case for relocation, it’s imperative that you can demonstrate to a judge that the move has been well thought out. For example, it’s beneficial to show you have thoroughly researched the new location. This may include demonstrating knowledge of the new community through general statistical information, details of potential schools and care options, information about doctors and other relevant healthcare providers, and community or religious organisations which may provide helpful continuity for the child. Even providing information about crime rates can show your level of concern for the child’s future safety.
Another important area to properly document is the type of support you will have in your new location, whether through local family or friends. And the reasons why you wish to move must also be well thought out and able to be explained to the court. For example, it may be that a new job will improve your quality of life, in which case it’s necessary to describe exactly how this will benefit your child.
Since the Family Law Act stresses the need for a child to have a meaningful relationship with both parents, it’s also important to show that consideration has been given to the impact on the non-relocating parent and to how that parent will be allowed to maintain their relationship with the child. Suggestions for a fair and workable parenting arrangement should therefore also be included.
Are you a parent hoping to relocate with your children, or alternatively wishing to prevent a relocation? We can help. Please call Canberra family lawyer Cristina Huesch or speak with one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400.
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Please note our blogs are not legal advice. For information about obtaining the correct legal advice, please contact us.
